Harassment of Rent Regulated Tenant in New York
The laws surrounding rent-regulated tenants are much more strictly enforced than they used to be. Actions that may have formerly gone unprosecuted may land you in legal trouble by today’s standards.
What puts you at risk of prosecution?
In the State of New York, it is a criminal felony to harass a rent regulated-tenant.
In this context, harassment means any action that causes physical injury to the tenant or a third party, undertaken with the intent to make the tenant leave or surrender their rights to the apartment. This includes things done intentionally to cause harm or things that caused harm through recklessness.
The following are examples of situations where charges of harassment of a rent-regulated tenant may be filed:
- Using force against the tenant.
- Repeated interruption of essential services or utilities, and/or refusal to make necessary repairs.
- You are removing the possessions of a tenant.
- You are illegally locking out a tenant.
- Construction projects that are purposefully disruptive to the wellbeing and/or make the apartment physically dangerous to live in.
What is the federal statute involved?
Statute 241.05 of New York State penal law specifically relates to the harassment of a rent-regulated tenant. It states that it is illegal for an “owner” to cause physical harm to a tenant, either actively or by negligence, with the intention of trying to get the tenant to leave.
This statute effects “owners”, such as landlords, housing developments, co-ops, and management companies, and also extends to the actions of those employed and acting on the behalf of owners, such as supers, construction workers, and anyone else who could come into contact with a tenant on an owner’s behalf.
The Legal Definition: Harassment of a Rent-Regulated Tenant
Harassment of a rent-regulated tenant is an E Felony under New York criminal law. The “elements” of harassment of a rent regulated tenant are the things that the prosecutor must prove in order for you to be found guilty of this offense.
Basically, for a defendant to be convicted in a criminal trial for harassment of a rent-regulated tenant under Statute 241.05, all of the following must be proven true:
- The tenant is rent regulated.
- The apartment is rent regulated.
- The owner (you) caused physical harm to the tenant or a third party, either intentionally or through recklessness.
- The owner (you) caused this physical harm with the intention of getting the tenant to leave or waive their rights to the apartment.
Let’s delve a bit more deeply into these elements of the crime to understand their meaning better:
Element #1: The tenant is rent-regulated.
The definition of “rent regulated tenant” in this context is any tenant that is subject to the regulations set in place by the laws governing rent-regulated housing.
These include the Emergency Rent Control Housing Law of 1961, the Local Emergency Rent Control Act, of 1962, the Emergency Tenant Protection Act of 1974, the New York City Rent and Rehabilitation Law, and the New York City Rent Stabilization Law of 1969.
This element means that the tenant must actually qualify as rent regulated. There are several instances in which a tenant will not qualify for rent regulation, even if the previous tenant who occupied the apartment was rent regulated.
- Example: Cate’s grandmother lived in a rent-regulated apartment. While Cate was visiting for a week from out of town, her grandmother died. Cate decided she wanted to stay in the apartment. She claimed to be a rent-regulated tenant because her grandmother was a rent-regulated tenant.
However, in order to be protected by rent-regulated status, a relative must live in the apartment with the regulated tenant (in this case, Cate’s grandmother) for a statutory time period, which in most cases is at least two years. Because Cate had not lived in the apartment prior to her grandmother’s death, she was not considered a rent-regulated tenant.
Element #2: The apartment is rent regulated.
The definition of “rent regulated” in this context is any housing accommodation that is subject to the laws governing rent-regulated housing. Please see Element 1 for a list of those laws.
This element means that the apartment must actually be a housing accommodation, and must rent regulated. Commercial properties are not subject to rent regulation, so commercial tenants are not rent-regulated tenants.
In addition, landlords can petition to deregulate units where the tenant earns over a certain amount of income or pays over a certain amount of rent. If that petition is granted, the unit is no longer regulated, nor are the tenants.
- Example: When Kevin and Betsy moved into their apartment, it was a regulated unit. However, their landlord successfully petitioned to deregulate based on Kevin and Betsy’s level of income. Since the unit was deregulated, Kevin and Betty are no longer rent-regulated tenants.
Element #3: The owner caused physical harm to the tenant or a third party.
The definition of Element 3 is causing physical harm to the tenant, either intentionally or by recklessness. This element is specifically important. A prosecutor must prove that either a tenant or third party was physically harmed by the direct actions or recklessness of an owner, or of someone acting on behalf of an owner.
Such actions can include physical use of force, construction projects that make the subject premises dangerous to live in, cutting off vital utilities and services in a way that results in physical damage to the tenant, refusing to make necessary repairs in a way that is physically dangerous, and anything else that can be proven to physically harm a rent-regulated tenant.
- Example: Emily’s landlord refused to fix a serious mold problem in her apartment. As a result of her landlord’s actions, Emily had an asthma attack and had to seek medical attention. This constitutes physical harm, and the prosecution could cite medical records to this effect.
One thing that’s important to remember about this element is how specific the requirement is. Proving physical injury is much more difficult than proving, for instance, annoyance or badgering.
- For example, let’s take the case of excessive phone calls from a landlord. Though a tenant may claim that these phone calls disturbed their daily life, it may be difficult for the prosecution to prove any actual physical harm was caused by the owner.
Element #4: The owner caused physical harm with the intention of getting a tenant to leave or waive their rights to the subject premises.
The definition of Element 4 is the intention behind the act of injury against the tenant–specifically, that the owner caused physical injury to the tenant with the intention of getting them to leave or waive their rights to the unit.
In addition to proving that the tenant was physically harmed by the owner, the prosecution also must prove that the landlord intended to cause harm in order to get the tenant to leave, and/or to waive their rights as a rent-regulated tenant.
This generally requires showing a pattern of behavior in which the owner has attempted to persuade or pressure the tenant to leave or waive their rights.
- For example, let’s return to the case of Emily. Though the prosecution may be able to prove that the owner caused her physical harm, they must also prove that the owner refused to take care of the mold with the intention of getting Emily to leave or waive her rights to the apartment. This would involve citing previous attempts by the landlord to get Emily to leave the apartment.
Charges of criminal harassment of a rent-regulated tenant may be brought in addition to, or place of, charges for certain other related offenses, including:
Related Offense #1: Unlawful Eviction
The definition of unlawful eviction is evicting or attempting to evict any person who lawfully occupies a unit.
Unlawful eviction means that an owner has evicted a tenant without going through the proper court process. If a tenant winds up having to vacate the apartment because of the actions of an owner, or because they feel they have been harassed, they may sue on the grounds of unlawful eviction.
- Example: Susan withheld rent for two months because she claimed her landlord failed to make necessary repairs. Instead of taking her to court, her landlord changed the locks on the apartment. Susan was then able to argue that her landlord illegally evicted her.
If a tenant is able to prove illegal eviction, it could result in a judgment against the owner, including but not limited to treble damages (meaning three times whatever judgment the court awards). It could also result in difficulty evicting the tenant in the future.
Related Offense #2: Harassment in the First Degree
The definition of Harassment in the First Degree is the intentional and repeated harassment of a person, including but not limited to following them in public, and/or doing things that place them in fear of physical injury.
Even if a tenant is not able to prove that an owner specifically caused them physical harm, they could allege that they feared physical harm, and/or that an owner followed them around in public places.
- Example: Tony’s landlord wanted Tony to leave his apartment. In attempting to do so, the landlord approached him multiple times in public places and repeatedly threatened to turn off the heat in the middle of winter. This constitutes harassment in the first degree.
Related Offense #3: Harassment in the Second Degree
The definition of Harassment in the Second Degree is making aggressive physical contact (hitting, kicking, shoving, etc.) or threatening same, and/or following someone in a public place, and/or repeatedly attempting to alarm or seriously annoy someone.
Though this offense is similar to Harassment in the First Degree, it is more easily applied to a tenant harassment allegation, due to the clause concerning attempts to alarm or annoy someone.
- Example: Mary alleged that her landlord called her at all hours of the day and night for frivolous reasons. She was not able to prove physical damages but was able to present phone records that showed when the landlord called her and was, therefore, able to claim harassment in the second degree.
Related Offense #4: Retaliation by Landlord Against Tenant.
The definition of Retaliation by Landlord Against Tenant is a landlord evicting or otherwise retaliating against a tenant for a good faith complaint, a good faith action, or participation in a tenant’s organization.
This refers to instances in which a landlord seeks to either evict a tenant or alter the terms of their tenancy in retaliation for good faith complaints (i.e., violation complaints to HPD), good faith actions (i.e., bringing a court action against a landlord), or involvement in tenant organizations.
- Example: Monica filed an HPD complaint because she wanted the landlord to repaint her living room. A few months later, her landlord declined to renew her lease. Monica argued that this constituted a retaliatory action on the part of her landlord since she had been living in the apartment for ten years beforehand.
It is important to note that a number of civil charges of harassment can be made against owners. However, in order for the criminal charge of harassment of a rent-regulated tenant to be applied, it must be proven that the owner caused physical harm to the tenant with the intent of getting them to leave or cede their rights to an apartment.
What are some of the essential and impactful cases?
There have been a number of recent cases where landlords have been charged with criminal harassment of rent-controlled tenants. In many of these cases, a charge of criminal harassment is used alongside myriad other, associated charges.
Here are some cases:
- One of these cases involved Joel and Aaron Israel, Brooklyn landlords who were charged with harassing their tenants, among other things. Their charges included a scheme to defraud by unlawfully replacing rent-regulated tenants with non-regulated tenants, as well as several counts of unlawful eviction.
Ultimately, they pleaded guilty to the fraud and unlawful eviction charges and were able to avoid jail by paying restitution of nearly $250,000.00, submitting to five years probation and community service, and establishing, at their own cost, a regulatory agency for their company.
Governor Andrew Cuomo’s Governor’s Tenant Protection Unit initially handled the case, eventually referring it to the office of the acting Brooklyn District Attorney, Eric Gonzalez. Governor Cuomo, D.A. Gonzalez, and a number of other officials and agencies made a pointed reference to their determination to crack down on harassment and related behaviors.
- Another case involved landlord Steve Croman, who, in 2017, was one of the biggest multi-family landlords in the city. Croman was charged with regular and sustained tenant harassment, alongside tax fraud and criminal mortgage.
He served one year in prison and had to pay a 5 million dollar fine. In the announcement of his sentencing, Attorney General Schneiderman also specifically mentioned the harassment of rent-regulated tenants as a strong deciding factor in Croman’s imprisonment.
It is clear from these cases that, by in large, the criminal charge of “harassment of a rent-regulated tenant” is generally not used alone. However, it powerfully bolsters other similar charges (such as tax fraud, criminal mortgage, harassment in the first and second degree, and illegal eviction), and may increase a defendant’s sentence.
What agencies detect, investigate, and prosecute this crime?
There are a number of agencies, legal entities, and offices that investigate and prosecute harassment of rent-regulated tenants. These include, but are not limited to:
- The Department of Homes and Community Renewal (DHCR)
- District Attorneys’ Offices and Attorney General’s Office (including D.A. Special Housing Units)
- The Tenant Harassment Prevention Task Force (THPT)
- NYC Housing, Preservation, and Development (HPD)
- The Housing Rights Initiative
- Local Tenants Associations
There is an extensive collaboration between local agencies and larger governmental agencies when it comes to cases of alleged tenant harassment. Mayor Bill DiBlasio has established a task force (the THPT) to provide legal assistance and investigate harassment complaints.
These agencies, organizations, associations, and offices are primarily focused on preventing sustained harassment of tenants, especially rent-regulated and lower-income tenants.
What are the statutory penalties if you are convicted of this crime?
Harassment of a rent-regulated tenant is an E Class felony, which carries a statutory penalty of probation for 1 ½ to 4 years. You may also face additional fines and/or penalties, depending on the other charges are brought against you. In the case of a monetary judgment, you may be forced to surrender assets.
The penalties for harassment of a rent-regulated tenant become steeper in a number of situations. Specifically, you face heightened penalties if you:
- Have previous charges of tenant harassment
- Are being charged with the harassment of multiple tenants at once–for instance, if all the tenants in a building are alleging harassment
- Have a record of misconduct with tenants
- Caused particularly grave harm to a tenant
- Are being charged with other, related violations or crimes.
What are some of the additional consequences of being convicted?
If charged with harassment of a rent-regulated tenant, you may face various serious consequences beyond criminal conviction.
When it comes to landlord-tenant harassment cases, there tends to be a good deal of coverage and publicity by pro-tenant groups and publications. This can result in a severe hit to your reputation or the reputation of your company.
This reputation hit may cause a significant loss of future business, and therefore a significant loss of income. In some cases, your license may be revoked, and you may be barred from operating in the real estate industry.
What are some defenses to criminal harassment of a rent-regulated tenant?
As mentioned above, the prosecutor’s burden of proof in this criminal charge is primarily two-fold. Once it is confirmed that both the tenant and the apartment are rent-regulated, it must be proven that:
- The owner physically harmed the rent regulated tenant or a third party; and,
- The owner caused physical harm with the intention of getting the rent-regulated tenant to leave the apartment or waive their rights.
In order to obtain a criminal conviction of this charge, the prosecution must prove that both of these elements are true.
In the case of a criminal trial, there is an “evidentiary standard,” meaning a standard of evidence that must be proven in order to obtain a conviction. This standard is “proof beyond a reasonable doubt.”
A jury must consider a criminal defendant innocent until proven guilty beyond a reasonable doubt. This means it is the prosecutor’s job to bring evidence solid enough that the jury ultimately has no real doubt that the elements are true, and that therefore the defendant is guilty.
What if you are facing a criminal charge of harassing a rent-regulated tenant?
The prosecutor must prove that you have caused physical injury to the tenant. They may bring evidence in the form of medical records or documentation and/or professional testimony. The prosecutor must also prove that this injury was done with the intention of removing the tenant from the apartment or having them waive their rights.
However, no matter what evidence they bring, the burden of proof in a criminal case is on the prosecution. They must present evidence compelling enough that it stands up to any argument against it. This is a high evidentiary standard.
It is important to note that if there are any civil claims brought against you, the evidentiary standard is much lower. In the case of a civil claim, the plaintiff must only establish that you are more likely than not to be responsible (also known as “preponderance of the evidence.”) In a criminal case, though, the evidentiary standards remain quite high.
Nobody wants to go to jail or pay a fine—and nobody wants a conviction for criminal harassment on their record. If convicted, people may start to associate you with this crime, even though they do not understand the specifics of your case.
There are several powerful legal defenses you can use to fight these charges. Let’s look at an example to highlight some of those defenses.
- For example, Joseph is a rent-regulated tenant and claims his landlord is guilty of criminal harassment. He claims that there was a crack in the window of his back room, which let in a draft and gave him a cold.
He also claims that the landlord left the crack in the window because he was trying to drive Joseph out of the apartment. He believes this because he knows that some of the units in the building have been deregulated. Joseph brings a note from his doctor saying he had a cold as evidence.
The owner did not cause physical injury.
- Example: Though Joseph does have a note saying he had a cold, there is no evidence that the cold was caused by the crack in the window. There was a delay in fixing the crack. However, the landlord was able to get it fixed eventually. Joseph has a history of colds and has complained of colds long before and long after the crack was fixed. There is, therefore, room to doubt that the owner caused Joseph’s cold.
The owner did not cause harm with the intention of getting the tenant to leave or waive their rights.
- Example: Joseph claims that the landlord left the crack in the window with the intention of driving him out of the apartment. However, though the landlord legally deregulated certain units in the building, there is no record of him approaching Joseph about leaving or waiving his rights. There is therefore reasonable doubt that the landlord acted–either directly or in negligence–with the intention of getting Joseph to leave the apartment.
If you’re facing these charges, it is definitely advisable to seek out a lawyer.
Beyond the potential jail time, probation, and/or community service, cases that involve harassment of rent-regulated tenants often incur very large fines, settlements, or other monetary costs.
An experienced lawyer can help you through every phase of the process. They can represent your interests during questioning and interrogation, ensure a fair presentation of any investigatory findings, negotiate with the prosecution and tenant attorneys, and map out the best possible strategies for trial.
You are approaching an investigation and trial on your own leaves you vulnerable and liable to make crucial mistakes. Our attorneys are well versed in the complexities of tenant harassment charges and can bring their experience to the table to make the best possible case for you.
Call us for help
For questions about criminal harassment of a rent-regulated tenant, or to discuss your case confidentially with one of our criminal defense attorneys, do not hesitate to contact us.
We have local criminal law offices in your area.